WORKERS COMPENSATION APPEAL TRIBUNAL

BETWEEN:

WORKERCASE ID #[personal information]

APPELLANTAND:

WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND

RESPONDENT

DECISION #126

Appellant Worker, as represented by Maureen Peters,Worker Advisor

Respondent Brian Waddell, Solicitor representing theWorkers Compensation Board

Place and Date of Hearing November 3, 2009Best Western, CharlottetownCharlottetown, Prince Edward Island

Date of Decision February 11, 2010

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FACTS, EVIDENCE AND BACKGROUND

1. This is an appeal of Internal Reconsideration Decision IR-08-102 dated March

9, 2009, upholding a decision of the Board dated September 16, 2008, in which

it was found that the Worker’s right elbow and forearm tendinitis (tendinitis)

was not related to her employment.

2. On August 5, 2008, the Worker completed a Worker’s Report to report a

workplace injury suffered by the Worker described as follows:

for about a month when I was doing my job, I would have pain inmy right arm when I would lift [personal information] . On June23 I went to serve [personal information] and I could hardly lift[personal information] .

3. The Worker first sought medical attention for her injury from Dr. Frank Estey,

her family physician, on June 26, 2008, with complaints of right elbow and

forearm pain from repeated lifting.

4. The Physician’s Report by Dr. Estey dated August 1, 2008, provided a

diagnosis of tendinitis of the right elbow and forearm and that the Worker was

unable to use her right arm effectively.

5. The Worker’s symptoms continued and she followed up with regular visits to

Dr. Estey during July and early August, 2008.

6. The Worker underwent a cervical spine x-ray, blood tests, etc. to rule out

disease or other disorder as the cause of her symptoms.

7. The results were normal.

8. The Worker completed a Manual Handling-Progressive Injury Questionnaire on

August 5, 2008.

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9. The Worker described her symptoms as “sharp - shooting pains that would go

up my arm and extending towards my elbow. Very difficult to lift anything.”

10. On August 29, 2008, the Board approved physiotherapy treatment for the

Worker’s tendinitis injury, prior to adjudication of her claim.

11. An inter-office memorandum dated August 29, 2008, by the Board’s

Entitlement Officer states in part:

I spoke with the Worker regarding her claim for her right elbow. Iasked her if this injury developed over time or occurred from aspecific incident. She indicated it has been developing forapproximately 2 months before she sought medical attentionwith Dr. Estey on Jun.26/08. She thought it was just a sore armand it would heal on its own. A few days before Jun.26/08 shewas about to lift [personal information] and could not lift her arm. She went to see her family doctor, Dr. Estey, on Jun.26/08 andwas advised to be off work for a few weeks. She continued tofollow up with Dr. Estey on a regular basis and has been advisedto be off work until she received physio treatment. ... The Workersaid her pain is in her right elbow and to her wrist. The pain inher wrist had subsided after she received an injection by Dr.Estey but it is starting to develop again.

The Worker wanted me to know that she had been [personalinformation] for 26 years and employed by her present employersince 1992.

12. On September 5, 2008, the Board’s Occupational Therapist conducted a Pre-

adjudication Worksite Analysis for Progressive Injury Claims with the Worker

at the Worker’s workplace.

13. The Occupational Therapy Report dated September 9, 2008, reads in part:

Anatomical Area: right elbow/right arm/right side of neck

Diagnosis: tendinitis

Hand Dominance: right

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SUBJECTIVE EXPLANATION OF THE CLAIM

Symptoms:-sharp, shooting pains going up right arm, into elbow; very difficult tolift anything ...

Causal Factors:Worker feels this is due to all the years of repetitive work, usingthe right arm to [personal information].

History of Symptoms:- first noticed symptoms at the end of May/08- initially there was pain up into the right side of the neck andright elbow pain, described as shooting pain going up the arm,when worker tried to lift anything.- on June 23/08, unable to lift [personal information] - off work June 27/08- saw physician, Dr. Estey, on June 26/08- noticed improvement of symptoms while off work,- after one hour of working during workplace visit, worker reportsthe right elbow is sore and the soreness continues into the backof the right upper arm...

Treatment to Date:- medication; naprocyn- tennis elbow brace- cortisone shot on Aug. 1/08- off work- physiotherapy begins on Sept. 8/08...

JOB DUTIES

Schedule: works full time, 5 days/week, 7.5 hrs/day (either 6 am -2 pm or 10 am - 6 pm); does not take breaks at regular intervals,depending how busy it is. (my emphasis)

Duties:- very busy between 6-10 am; fast-paced (my emphasis)- check [personal information] - check/retrieve [personal information], count stock once/week- receive shipping orders- [personal information] - [personal information] - [personal information]

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- [personal information] - clean out [personal information] twice/week- no new/unaccustomed tasks have been introduced lately

OCCUPATIONAL RISK ANALYSIS AND EXPOSUREEVALUATION

- the role [personal information] involves many tasks as notedabove. Of the many duties, two are described below. It isimportant to note that not all tasks listed above were able to beobserved. (my emphasis)

TASK #1: [personal information] lifted with two hands downonto the [personal information] machine (sits 21 inches off thefloor) and once it is [personal information] , it is lifted with twohands and pushed on a cart, or carried to a counter [personalinformation] .

RISK ANALYSIS

Posture: in standing position, the right elbow moves flexes 90 to130 degrees to [personal information], and the forearm movesthrough full range of supination and pronation when [personalinformation]. The neck was observed to flex 20 degrees towardthe right shoulder when [personal information] , but the neckremained in neutral position when [personal information].

Repetition: this activity is busier at various points of the day. Thetask of [personal information] cycles quickly during this time thatthe [personal information], however it would not be consideredhighly repetitive (once every 30 seconds) for most (4 hours) of theday.

Force: lifting the full [personal information] - moderate force -weighs approx. 30 lbs [personal information] - minimal force

Exposure: There is a large variety of tasks, and the worker mayremain at the [personal information] position for approx. 10minutes, and then move on to other tasks

Vibration: none observedTemperature: 26 degrees Celsius

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TASK #2: [personal information]

RISK ANALYSIS

Posture: in standing position, the right shoulder hikes/elevates 20degrees towards the right side of the neck when pushing downthe [personal information]. The right elbow flexes 90 to 110degrees. The forearm moves from neutral position through 50degrees of pronation when holding [personal information].

Repetition: as described above, this activity is busier at variouspoints in the day, and cycles quickly at the time the [personalinformation], however it would not be considered highlyrepetitive (once every 30 seconds) for most (4 hours) of the day.

Force: minimal to moderate force, depending on the type of[personal information]

Exposure: worker describes that in the course of a shift, worksapprox. 45 minutes [personal information]; this activity alternatesbetween other tasks

Vibration: none

Temperature: 26 degrees Celsius

COMMENTS

Medical literature cites known risk factors such as highrepetition, high forces and extreme postures as possiblecontributors to the development of repetitive strain injuries to theright elbow/right arm, right side of neck. (my emphasis) Theabove job was analyzed with respect to these factors and it wasnoted that a great variety of tasks are performed with the rightarm (dominant hand). Extreme postures could not beappreciated at the elbow, however, the forearm moves throughextreme ranges of pronation and supination for some tasks. (myemphasis) The neck was observed to be held in an awkwardside flexion to the right, however it is difficult to comment on howoften this is done. At other times, the neck was observed toremain in neutral position while performing a task. Minimal tomoderate forces could be appreciated, depending on which task -

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[personal information]. Some tasks cycle quickly, however asnoted above, would not be considered highly repetitive for mostof the day. (my emphasis)

14. On September 16, 2008, the Board’s Entitlement Officer by letter to the Worker

denied the Worker’s claim.

15. The Entitlement Officer’s Rationale for Decision reads in part:

I note you work as a [personal information] with (naming theWorker’s workplace) and have been employed in this capacitysince April 1992. You indicate on the Manual Handling -Progressive Injury Questionnaire, dated August 5, 2008, youdescribe a typical work day as “[personal information]” Youindicate your right elbow and forearm, on the diagram providedon the questionnaire, as the sources of your symptoms. ...

You first sought medical attention with Dr. Estey on June 26,2008. The report of this date states, “Sustained right elbow injuryfrom repeated lifting.” The diagnosis was right elbow andforearm tendinitis. ...

As a result of your symptoms being progressive in nature, anassessment of your job duties and the presence of risk factors forthe development of right elbow and forearm tendinitis wascompleted by the Workers Compensation Board OccupationalTherapist on September 5, 2008. The report of September 9,2008, states,

“Medical literature cites known risk factors such ashigh repetition, high forces and extreme postures aspossible contributors to the development of repetitivestrain injuries to the right elbow/right arm, right sideof neck.. The above job was analyzed with respect tothese factors and it was noted that a great variety oftasks are performed with the right arm (dominanthand). Extreme postures could not be appreciated atthe elbow, however, the forearm moves throughextreme ranges of pronation and subination for sometasks. The neck was observed to be held in anawkward side flexion to the right, however it isdifficult to comment on how often this is done. At

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other times, the neck was observed to remain inneutral position while performing a task. Minimal tomoderate forces could be appreciated, depending onwhich task - [personal information]. Some taskscycle quickly, however as noted above, would not beconsidered highly repetitive for most of the day. The information on file does not support the presence of the WorkersCompensation Board’s criteria required for repetitive straininjuries.”

The Workers Compensation Board Policy, POL04-61, “RepetitiveStrain Injuries”, states,

“Thorough investigation to determine causation andto establish a well-defined medical diagnosis isessential as it forms the basis of appropriatetreatment. Claims will be considered when there is areasonable association between the medicalcondition and exposure to the task risk factors.”

As stated above, the risk factors for the development of elbowand forearm tendinitis could not be appreciated in your worktasks.

Before a worker becomes entitled to compensation for injuryunder the Workers Compensation Act, the injury must arise out ofand in the course of employment. This means that there must beinformation on your file which indicates your injury is related toyour work and that your injury took place at a time and placecovered by your employment. There must be something in theemployment relationship or situation that had causativesignificance in producing the injury.

In conclusion, I do acknowledge your need to seek medicalattention for your right elbow and right forearm tendinitis and thefact that you noticed this pain while performing your work tasks. However, based upon my review of the submitteddocumentation, medical reports, and the OccupationalTherapist’s report, I find no direct evidence to support a causalrelationship that your right elbow and forearm tendinitis aroseout of and in the course of your employment. Therefore, yourclaim for compensation is denied.

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16. On September 18, 2008, the Board received a Physiotherapist Report from the

physiotherapist at the Physio Center which states in part:

Patient (the Worker) is reporting some relief from ultrasound andacupuncture. Patient reports improved relief with new tenniselbow support. Her pain is aggravated by repetitive movementsbut seems to be improving. Patient has been denied throughWorker’s Compensation but is continuing physiotherapy on herown.

17. On October 27, 2008, the Board received a letter from the Physiotherapist at

The Physio Center dated September 24, 2008, which reads:

The Worker presented to The Physio Center initially onSeptember 8 , 2008, with complaints of medial and lateral elbowth

pain with elbow and wrist movement (specifically, elbow flexionand extension, and wrist flexion and extension), pain into theforearm, and pain into the wrist. This presentation is indicativeof lateral epicondylitis or ‘tennis elbow’. Lateral epicondylitis ismost often caused by overuse or repetitive strain of the elbowtendons, and as the tendons are continuously worked, they donot have a chance to fully heal, and become weak and painful.(my emphasis)

The Worker is responding favorably to treatment which hasincluded ultrasound, acupuncture, unloading tape, and a elbowstrap. The Worker will likely benefit from continued use of herelbow brace, and may be required to alter somepostures/positioning upon her return to work in order to preventfurther exacerbation of this repetitive strain injury.

18. On December 3, 2008, the Board’s Entitlement Officer sent a letter to the

Worker stating:

Although your physiotherapist, (naming her), states lateralepicondylitis is most often caused by overuse or repetitive strainof the elbow tendons, your claim was denied due to the fact thatthere were no risk factors found in your work duties for thedevelopment of right elbow and forearm tendinitis. (myemphasis)

I have reviewed the new information from The Physio Center andhave determined the information does constitute new evidence,

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however, it does not change the decision dated September 16,2008.

19. On December 10, 2008, the Worker filed a Notice of Request for Internal

Reconsideration dated November 26, 2008, requesting reconsideration of the

decision made by the Entitlement Officer in her letter dated September 16,

2008.

20. The Worker also submitted typewritten notes with respect to the Occupational

Therapy Report dated September 9, 2008, which reads:

Causal Factors

Heavy lifting and carrying heavy equipment [personalinformation] in it to transport to [personal information] or toanother [personal information], to be placed in [personalinformation] for later use.

Lifting heavy [personal information].

Receiving and putting away [personal information].

History of Symptoms

- Worker noticed improvement while off work with the sharpshooting pains up my arm after I received the cortisone shot.

- After working for 1 hour the worker reported that the rightelbow is sore and the pain is in the top part of my arm from theelbow to my wrist. I also pointed out to the OccupationalTherapist that my arm from the elbow to the tips of my fingerswas swelled 3 times its normal size. The Occupational Therapistthen informed me it was probably caused from not using my armfor a period of time of continuous work and to make sure I wenthome and put ice on it.

Job Duties

- Very busy for the entire shift. (my emphasis)

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- Clean out [personal information] is done more than twice/weekit is done after [personal information] is cleaned out 3 times aday, also when cleaning of the [personal information] daily and[personal information] once a week.- [personal information].

Task #1- the [personal information] is lifted off the [personal information]machine and carried to the [personal information] and not pushedon a cart as the Occupational Therapist states. We told her at thetime we are doing the [personal information] there is no cartsavailable as the [personal information] have them all in use. Weuse this [personal information] at various times of the day, notjust once, depending on the [personal information].

Risk Analysis

Posture

My neck was observed to flex 20 degrees toward the rightshoulder when [personal information], as I was trying not to puttoo many [personal information] onto the [personal information]to lift as my arm was sore and swelling.

Exposure

- The worker will remain at the [personal information] for a period30 to 45 minutes, not 10 as the Occupational Therapist stated. We serve [personal information] daily to [personal information],then we do the 3 carts to go to [personal information] which hasapproximately 40 [personal information] on them, then we[personal information].

- [personal information] are done daily and the [personalinformation] non stop from 15 minutes up to 30 minutes at a time.

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Repetition

- Very high at this time squeezing an [personal information] for 30to 45 minutes.

Risk Analysis

Exposure

- The Occupational Therapist told me that the [personalinformation] I work at were too high for me, and she didn’t wantme working on the [personal information] at all, but if my claimwas approved she would work me to work on the [personalinformation] as it was the only other [personal information] wehave.

Comments

- All variety of tasks are performed with the right arm (dominanthand). The forearm moves through extreme ranges of pronationand supination for tasks, because I may have to reach overanother [personal information] to reach the [personal information]which could have me standing at an angle or even on my tip toesto [personal information] it.

Tasks cycle quickly and is highly repetitive for the better part of eachshift as our department is run on a schedule and all [personalinformation] are to be [personal information] at scheduled times. (myemphasis)

21. Subsequently, the Board’s Entitlement Officer made a request to the Board’s

Occupational Therapist to review the information regarding the Worker’s work

tasks that the Worker felt were not evaluated as contained in the typewritten

notes received by the Board on December 10, 2008, and to provide a further

comment on whether this new information changes the original Occupational

Therapy Report dated September 9, 2008.

22. On January 27, 2009, the Board’s Occupational Therapist by inter-office

memorandum commented:

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I have received the new information submitted by the Worker,and acknowledge the changes submitted.

Given the nature of the job, and that there is a variety of tasks, itis considered that biological resting time is adequate betweenthe variety of duties. (my emphasis)

When discussing exposure under Task #1, the change is from“approx. 10 minutes” to 30-45 minutes (as submitted by worker). This however, does not alter the comment under repetition,which remains the same.....

...”however it would not be considered highly repetitive (onceevery 30 seconds) for most (4 hours) of the day.” (my emphasis)....

When discussing repetition under Task #2, the Worker submitsthat the [personal information] are a small percentage of the[personal information]. This however does not alter the commentunder repetition, which remains the same....

...”however it would not be considered highly repetitive (onceevery 30 seconds) for most (4 hours) of the day.” (my emphasis).....

It is these parameters which are used in the criteria for work-relatedness with regards to repetitive strain injuries.

It also to note that the physiotherapy report, dated Sept. 8, 2008,,reports that “she has been off work since June 26, 2008, .... shehas found no relieving factors as of yet.”

23. On January 29, 2009, the Board’s Entitlement Officer wrote to the Worker with

respect to the additional information submitted by the Worker to the Board on

December 10, 2008, (typewritten notes) stating,

The information regarding additional work tasks does constitutenew evidence not already considered in the original decision. Therefore, this information has been reviewed by theOccupational Therapist in the above noted comment datedJanuary 27, 2009. However, it does not change the decision onyour file. Therefore, the decision dated September 16, 2008, isunchanged.

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24. On March 9, 2009, the Board’s IRO denied the Worker’s reconsideration

request.

25. The Reconsideration Issue identified by the IRO was as follows:

Did the worker’s right elbow and forearm tendinitis arise out ofand in the course of her employment?

26. The Rationale/Analysis for Decision made by the IRO reads in part:

In a decision letter dated September 16, 2008, the EntitlementOfficer denied the worker’s claim because the risk factors for thedevelopment of elbow and forearm tendinitis could not beappreciated in her work tasks.

In determining entitlement, the Workers Compensation Boardrequires evidence that:

. an injury has occurred;

. the injury was caused by an accident arising out of and inthe course of employment;. the diagnosed condition is compatible with the historyprovided; and. medical treatment was sought or wages were lost as aresult of the injury.

In the course of determining whether the worker had an injurycaused by her employment we must look at Policy O4-61 -Repetitive Strain Injuries which states, “The WorkersCompensation Board Occupational

Therapist will assess the worker’s worksite and activities and evaluatewhether the potential risk factors are present. These include:

- high repetition, high force, extreme postures;- vibration;- frequency, duration;- recovery time, length of employment;- individual work style, unaccustomed activity;- extreme cold temperatures.”

Thorough investigation to determine causation and to establish awell-defined medical diagnosis is essential as it forms the basis ofappropriate treatment. Claims will be considered when there is areasonable association between the medical condition andexposure to the task risk factors.”

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The Workers Compensation Board Occupational Therapistcompleted a worksite review on September 5, 2008. This reportstates:

“Medical literature cites known risk factors such as highrepetition, high forces and extreme postures as possiblecontributors to the development of repetitive strain injuries to thewrist and forearm. The above job was analyzed with respect tothese factors and it was noted that a great variety of tasks areperformed with the right arm (dominant hand). Extreme posturescould not be appreciated at the elbow, however, the forearmmoves through extreme ranges of pronation and supination forsome tasks. The neck was observed to be held in an awkwardside flexion to the right, however it is difficult to comment on howoften this is done. At other times, the neck was observed toremain in neutral position while performing a task. Minimal tomoderate forces could be appreciated, depending on which task -[personal information]. Some tasks cycle quickly, however asnoted above, would not be considered highly repetitive for most ofthe day.”

It has been noted in the worker’s file that she has worked as a[personal information] for the past 26 years and does not have ahistory of previous right elbow/forearm problems. That beingsaid, the worker did not do anything new or unaccustomed whenperforming her work duties to bring about the symptoms. The x-ray of the neck was normal.

The Occupational Therapist notes above in her report to file thatthere was a variety of tasks performed with the right arm andthese would not be considered highly repetitive for most of theday.

To be entitled, it must be shown on the balance of probabilitiesthat the injury arose out of in the course of employment. Something within the employment must be identified as havingcaused the condition or injury. A speculative possibility isinsufficient for acceptance of a claim. The evidence is examinedto see whether it is sufficiently complete and reliable to allow adecision to be made with confidence. The standard of proof fordecisions made under the Act is the balance of probabilities: adegree of proof which is more probable than not.

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In weighing the evidence on file, I find that although the worker notedpain while performing her work tasks, I find no direct evidence tosupport a causal relationship that the worker’s right elbow and forearmtendinitis arose out of and in the course of her employment. Therefore,the decision of the entitlement officer to deny the worker’s claim wasappropriate.

27. On April 7, 2009, the Worker appealed the IRO’s decision to WCAT.

ISSUE

28. The issue is whether the Worker’s right elbow and forearm tendinitis arose out

of and in the course of her employment?

LEGISLATION AND WCB POLICIES

29. WCAT is bound by the Workers Compensation Act (the Act) and Board Policy

unless ultra vires.

30. The following sections of the Act and Board Policy are relevant with respect to

the Worker’s appeal.

31. Section 6.(1) of the Act reads:

Where, in any industry within the scope of this Part, personalinjury by accident arising out of and in the course of employmentis cause to aworker, the Board shall pay compensation as provided by this Part outof the Accident Fund.

32. Section 1. (1)(a) of the Act defines “accident” and includes the following:

1.(1) In this Act(a) “accident” means subject to subsection (1.1) a

chance event occasioned by a physical or naturalcause, and includes

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.....

(ii) any ....

(B) thing that is done and the doing of which arises outof, and in the course of employment...

33. It is clear that workers who suffer an injury progressive in nature as a result of

their work duties suffer a personal injury by accident within the scope of

Section 6.(1) of the Act.

34. A repetitive strain injury is an example of a progressive type injury.

35. Board Policy: POL-04-61 (Repetitive Strain Injuries) states in part:

In the Definition section:

4. “Repetitive strain injury” means a condition that mayinclude, but is not limited to, tendinitis,(my emphasis) bursitis and neurovascular disturbances of the upperextremities.

5. “Tendinitis” means the inflammation of a tendon whichattaches the muscle to bone, such as those found in theshoulder, elbow, wrist or hand.

36. The Policy section reads in part:

2. Thorough investigation to determine causation and toestablish a well-defined medical diagnosis is essential asit forms the basis of appropriate treatment. Claims will beconsidered when there is a probable association betweenthe medical condition and exposure to the task risk factors. Investigations may include the following:

- a comprehensive medical assessment including: clinicalhistory, physical examination with diagnostic testing(nerve conduction studies/x-rays);

- investigation of non-occupational risk factors;- assessment of occupational risk factors by an Occupational

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Therapist including a worksite visit.

3. Non-occupational or personal risk factors which maycontribute to the development of repetitive strain injuriesinclude the following:- congenital: anatomical anomalies, genetic

predisposition;- auto-immune/haematological: inflammatory

arthritis, psoriasis, lupus- tumors: nerve sheath/bone tumors, cysts, ganglions;- other: age, hobbies/leisure activities, body mass

index, high psychosocial distress, previous trauma.

4. The Workers Compensation Board Occupational Therapistwill assess workplace activities and evaluate the extent ofexposure of the following potential risk factors:- high repetition, high force, extreme postures;- vibration;- frequency, duration;- recovery time, length of employment;- individual work style, unaccustomed activity;- extreme cold temperatures.

High repetition = 2 to 4 times per minute or cyclesless than 30 seconds. (my emphasis)High force = hand weights of > 4 kg. (my emphasis)High vibration = > 1,000 hours exposure.

Current research is used to evaluate the impact ofeach risk factor which varies depending upon thediagnosis.

5. Each claim for repetitive strain injury will be considered onits own merits and within the context of WorkersCompensation Board policy, POL04-16, “Benefit Of Doubt”.

37. Board Policy: POL-04-23 (Arising Out Of And In The Course Of Employment)

states in part:

In the DEFINITION section:

2. “Arising out of employment” means an injury that must belinked to, originate from, or be the result of, in whole or in

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part, an activity or action undertaken because of theworker’s employment.

3. “In the course of employment” means the injury must belinked to a worker’s employment in terms of time, placeand activity.

38. The POLICY section reads in part:

1. Compensation is payable to a worker who is injured as adirect result of a work-related accident.

2. The injury must be caused by an accident that happens ata time and place consistent with the obligations andexpectations of employment, such as hours and place ofwork.

Time and place are not strictly limited to the normal hoursof work or the employer’s premises; but there must be arelationship between expectations of employment and thetime and place the accident occurs.

9. Where the accident arose out of the employment, unlessthe contrary is shown, it shall be presumed that it occurredin the course of the employment, and where the accidentoccurred in the course of employment, unless the contraryis shown, it shall be presumed that it arose out ofemployment.

39. Board Policy Number: POL-04-30 (Weighing Of Evidence) states in part:

In the POLICY section:

1. In determining entitlement, the Workers CompensationBoard will consider the following:. whether an injury has occurred;. whether the injury was caused by an accident

arising out of and in the course of employment;. where the diagnosed condition is compatible with

the accident history provided; and. whether medical treatment by a health care

provider was required as a result of the injury.

3. The standard of proof for decisions made under the Act isthe balance of probabilities - a degree of proof which is

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more probable than not.

40. Section 17. of the Act reads:

Notwithstanding anything in this Act, on any application forcompensation the decision shall be made in accordance with thereal merits and justice of the case and where it is not practicableto determine an issue because the evidence for or against theissue is approximately equal in weight, the issue shall beresolved in favour of the claimant.

41. Board Policy: POL-04-16 (Benefit Of Doubt) reads:

Policy:

1. The decisions of the Workers Compensation Board shallalways be given upon the real merits and justice of thecase and the decisions are not bound to follow strict legalprecedent.

In determining merits and justice the WorkersCompensation Board must give consideration to:

- all facts and circumstances relating to the case;- relevant provisions of the Workers Compensation

Act and Regulations;- relevant Workers Compensation Board policies

2. A worker is not required to provide proof beyond anyreasonable doubt in support of a claim for compensation. Decisions are determined on the balance of probabilitiesbased on all facts.

3. Where the evidence presented equally supports more thanone decision, the benefit of doubt will always be given tothe worker.

4. The principal of benefit of doubt is not to be used:

- as a substitute for lack of evidence;- in a purely speculative sense; or- when the issue can be decided on the balance of

probabilities.

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ANALYSIS AND DECISION

42. Dr. Estey diagnosed the Worker’s injury as tendinitis of the right arm.

43. There is no medical evidence or dispute to the contrary.

44. The only issue is whether the Worker’s tendinitis arose out of and in the

course of her employment.

45. Tendinitis is a common disorder or injury associated with progressive type or

repetitive strain injuries.

46. Occupational risk factors (workplace activities), non-occupational risk factors

and/or personal risk factors may contribute to the development of tendinitis.

47. The Worker underwent medical examination and testing, including blood tests

and a cervical spine x-ray, to rule out a disease, congenital condition or other

non-occupational disorders as the cause of the Worker’s symptoms.

48. These investigations proved normal.

49. Tendinitis (irritation and inflammation of the tendon tissue), a common

condition affecting the elbow, is frequently referred to as “tennis elbow”.

50. The medical evidence suggests that repetitive activities and heavy use or

overuse of the elbow and/or forearm and/or wrist may cause tendinitis.

51. The Worker’s occupation as a [personal information] exposed her to several

potential occupational risk factors.

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52. The Worker’s work tasks included heavy lifting, pushing, moving and carrying

of various [personal information] products, equipment and other items.

53. The Worker’s duties included receiving and putting away [personal

information] orders, [personal information] and other equipment and items.

54. Also, the [personal information].

55. Many of these tasks cycle quickly and are highly repetitive when being done.

56. It should be noted that the Board’s Occupational Therapist did not observe the

Worker in all her tasks for and during a typical work day.

57. The Occupational Therapist only gave a risk analysis and exposure evaluation

for the tasks of [personal information].

58. Although these tasks (and other unmentioned tasks) would clearly cycle

quickly and be highly repetitive for a period of time, the risk factor parameter

stated by the therapist was - some tasks cycle quickly, however... would not

be considered highly repetitive for most of the day. (i.e. at least once every 30

seconds for at least 4 hours of the work day).

59. The parameter for “high repetition” stated in Board Policy: POL-04-61

(Repetitive Strain Injuries) is:

High repetition = 2 to 4 times per minute or cycles less than 30 seconds.

60. Many of the Worker’s work tasks would be considered highly repetitive using

this parameter.

61. The following are risk factors and examples from the Worker’s workplace that

may be associated with the Worker developing a progressive type or repetitive

strain injury:

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Risk Factor Specific Examples

High Repetition - preparing [personal information] various [personalinformation] products, [personal information]

High Force - Lifting/carrying heavy [personal information]products, equipment and other itemsPushing/pulling heavy loads(High force = hand weights of > 4 kg. per BoardPolicy: POL04-61)

Extreme (Awkward) Postures - forearm moves through extreme ranges of pronation

and supination for some tasks[personal information] too high

Frequency and Duration- some tasks cycle quickly and are highly repetitiveworks full time, 5 days/week, 7.5 hrs./day

Recovery Time - does not take breaks at regular intervals, dependinghow busy it is very busy for the entire shift

Length of Employment - worked as a [personal information] for past 26 years,present employer for 17 years

62. The Panel finds that there is a probable association between the Worker’s

tendinitis and the Worker’s occupational risk factors.

63. There is no evidence to suggest any non-occupational risk factors, and no pre-

existing medical condition affecting the Worker’s right arm.

64. The Panel finds on the balance of probabilities that the Worker’s right elbow

and forearm tendinitis arose out of and in the course of her employment.

65. Accordingly, the Worker’s appeal is allowed.

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66. IRO Decision IR-08-102 is reversed, with the Worker’s claim to be returned to

the Board for adjudication of appropriate benefits.

Dated this 11 day of February, 2010 th

______________________________________

John L. Ramsay, Q.C., Vice-Chair

Workers Compensation Appeal Tribunal

Concurred:

_______________________________________

Donald Turner, Employer Representative

_______________________________________

Gordon Huestis, Worker Representative